C.F.R. » Title 5 » CHAPTER I—OFFICE OF PERSONNEL MANAGEMENT › SUBCHAPTER B—CIVIL SERVICE REGULATIONS › PART 359—REMOVAL FROM THE SENIOR EXECUTIVE SERVICE; GUARANTEED PLACEMENT IN OTHER PERSONNEL SYSTEMS › Subpart D—Removal of Career Appointees During Probation

5 C.F.R. § 359.402

Removal: Unacceptable performance

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(a) Coverage. This section covers the removal of a career appointee from the SES during the probationary period for unacceptable performance.

(b) Basis for action. A removal under this section need not be based upon a final rating under the agency's SES performance appraisal system established under subpart C of part 430 of this chapter. Even if a removal is based on such a rating, the removal action is taken under this section.

(c) Procedures. The agency shall notify the appointee in writing before the effective date of the action. The notice shall, as a minimum—

(1) State the agency's conclusions as to the inadequacies of the appointee's performance;

(2) State whether the appointee has placement rights under § 359.701 and, if so, identify the position to which the appointee will be assigned; and

(3) Show the effective date of the action.

Notes of Decisions
Cited in 1 case, 2008–2008 · leading case: Colodney v. Dep't of Health & Human Servs., 314 F. App'x 312 (Fed. Cir. 2008).
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Colodney v. Dep't of Health & Human Servs., 314 F. App'x 312 (Fed. Cir. 2008). · cites it 3× “In response to the order, Colodney argued that the prior appeal concerned removal under 5 C.F.R. § 359.402 , which he asserted only applied to post-appointment performance and did not provide for appeal rights.”
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